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Examining Business Open Enrollment and Employer Vaccination-and-Testing-Mandate Guidelines

We are already a month into open enrollment 2022. Are you a business owner looking for health insurance, but it’s outside of your renewal period? No worries; your group qualifies for a special enrollment period (SEP)! Yes, you read that correctly!

Open enrollment is a yearly period when individuals/families and businesses can enroll in a new health insurance plan or make changes to their existing plan. In most states, open enrollment runs from November 1 to December 15, but New Jersey’s deadline is January 31.

It’s that time of year again when business owners can get health insurance without meeting the standard participation requirements. It runs until December 15 for a January 1 effective date.

Technically for a group health plan, you need 75% of your employees to opt in, but during the special enrollment period (SEP), that requirement is waived, and you can enroll with as few as one person getting insured.

The main requirements for your business are that you have at least one employee on the plan besides the owner and their spouse, and that employee must be a W-2 employee.

Employer Vaccination-and-Testing-Mandate Guidelines

OSHA released details on its employer vaccination-and-testing mandate for private businesses with 100 or more employees. The Fifth Circuit Court of Appeals has currently stopped this law due to serious constitutional concerns, and its future implementation is uncertain. The new requirement for private businesses requires employers to adopt a workplace policy that mandates COVID-19 vaccinations or weekly testing for the entire workplace.

How will employees be counted to determine if the employer meets the 100 employee threshold?

Employers must include all employers across all of their U.S. locations regardless of employees’ vaccination status or where they perform their work.

The count is done on a corporate level, not by an individual location. A single corporate entity with multiple locations will include all employees at all locations in the count.

Part-time employees count towards the total number of employees. Part-time employees are not counted on a fractional basis.

Independent contractors do not count towards the total.

Employees who work from home are counted towards the 100 employee threshold. However, the mandate requirements would only apply to the employees who work in the office.

What are the deadlines for employer compliance?

There are two critical dates: December 5 and January 4.

By December 5, 2021, employers must have complied with the following OSHA requirements:

Determine the vaccination status of all employees and keep a record.

Obtain documented proof for all vaccinations in the workforce.

Implement the vaccination/testing policy approved by OSHA ETS standards, and inform all employees.

Implement a policy to provide employees with at least four hours of paid sick time to receive vaccination doses and further time off to recover from potential side effects.

Make employee vaccine/testing records available to employees or employee representatives upon request.

By January 4, employers must implement a testing program (if they decide to give employees the option of vaccinating or testing).

What is the testing requirement?

Any employee who is not fully vaccinated and goes to the workplace must submit to a COVID-19 weekly testing protocol. The employee must take and provide proof of a negative test at least once every seven days.

If an unvaccinated employee visits the office less often than every seven days, the employee must be tested for COVID-19 within seven days before returning to the workplace and must provide proof of negative test upon return. Employees who work remotely 100% of the time, work outdoors exclusively or work by themselves where no other individuals are present are exempted from testing.

Penalties for Noncompliance

OSHA has the authority to cite and financially penalize employers for non-compliance with all or specific aspects of this policy or cite employers for violations in particular instances.

OSHA will determine whether an employer has intentionally disregarded their responsibilities or displayed a blatant disregard to employee safety or health, both of which will result in stricter penalties. The penalty for an OSHA violation is $13,653 per violation. There is a far more severe penalty for willful or repeated violations: $136,532 per violation.

The Bottom Line

While the effective date may still be weeks away, you should begin preparing now by establishing policies for determining employees’ vaccination status and procedures for tracking weekly test results. It would be best if you also prepare for the possibility that employees may refuse to comply with the requirements of the ETS and begin planning and appropriate response. We will monitor these developments and provide updates as events warrant.

Mark Herschlag is CEO of Cosmo Insurance Agency, which is based in Ocean County. Cosmo Insurance Agency offers personalized solutions for individuals and businesses looking to obtain health, life, dental, long-term-care or disability insurance.

For more information or for a free, no-obligation quote, please call 201-817-1388 or email
[email protected].

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